Citation Nr: 0018889
Decision Date: 07/19/00 Archive Date: 07/25/00
DOCKET NO. 99-06 946 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to service connection for an increased rating for
service-connected post-operative residuals of a left shoulder
dislocation, minor arm, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. J. Bohanan, Counsel
INTRODUCTION
The appellant served on active duty from April 1966 to April
1968.
This appeal arises from a January 1999, Department of
Veterans Affairs Regional Office, No. Little Rock, Arkansas
(VARO) rating decision, which denied the appellant an
increased rating for his service-connected post operative
residuals of left shoulder dislocation, minor arm, evaluated
as 20 percent disabling.
FINDING OF FACT
Current manifestations of the appellant's service-connected
residuals of a left shoulder dislocation, minor arm, consist
principally of functional limitation of motion to 90 degrees
of abduction secondary to pain.
CONCLUSION OF LAW
The appellant's service-connected residuals of a left shoulder
dislocation, minor arm, are no more than 30 percent disabling.
38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4,
§ 4.40, Diagnostic Codes 5201, 5203 (1999).
REASONS AND BASES FOR FINDING AND CONCLUSION
Regarding the appellant's claim for an increased rating, the
Board finds that he has satisfied his statutory burden of
submitting evidence which is sufficient to justify a belief
that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West
1991) and Murphy v. Derwinski, 1 Vet. App. 78 (1990). It is
also clear that the appellant's claim has been adequately
developed for appellate review purposes by VARO, and that the
Board may therefore proceed to disposition of the matter.
In evaluating the appellant's request for an increased rating,
the Board considers all of the medical evidence of record,
including the relevant medical history. Peyton v. Derwinski,
1 Vet. App. 282, 287 (1991). Disability evaluations are
determined by the application of a schedule of ratings based
on average impairment of earning capacity. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic
codes identify the various disabilities. 38 C.F.R. § 4.1
(1999) requires that each disability be viewed in relation to
its history and that there be emphasis upon the limitation of
activity imposed by the disabling condition. 38 C.F.R. § 4.2
(1999) requires that medical reports be interpreted in light
of the whole recorded history. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
Where entitlement to compensation has already been established
and an increase in the disability rating is at issue, the
present level of disability is of primary concern. Francisco
v. Brown, 7 Vet. App. 55 (1994). Further, where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (1999). All evidence must be evaluated in
arriving at a decision regarding an increased rating. 38
C.F.R. §§ 4.2, 4.6 (1999).
The Board notes that in assigning an appropriate rating, the
policy against "pyramiding" of disability awards enumerated
by 38 C.F.R. § 4.14 must be considered. The assignment of a
particular Diagnostic Code is "completely dependent on the
facts of a particular case." Butts v. Brown, 5 Vet. App.
532, 538 (1993). One Diagnostic Code may be more appropriate
than another based on such factors as an individual's relevant
medical history, the current diagnosis and demonstrated
symptomatology. Any change in a Diagnostic Code must be
specifically explained. Pernorio v. Derwinski, 2 Vet. App.
625, 629 (1992). In this case, the Board considered whether
another rating code is "more appropriate" than the one used
by the RO. Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).
The appellant is currently evaluated under 38 C.F.R. § 4.71a,
Diagnostic Code 5203 for impairment of the clavicle or scapula
at 20 percent disabled, for nonunion with loose movement,
which is the maximum rating under this diagnostic code.
38 C.F.R. § 4.71a Diagnostic Code 5203 (1999).
The diagnostic criteria for limitation of motion of the arm
call for a 20 percent disability evaluation for limitation of
motion at shoulder level, a 30 percent disability evaluation
is warranted for limitation of motion midway between the side
and shoulder level, and a 40 percent disability evaluation is
warranted for limitation of motion to 25 degrees from the
side. 38 C.F.R. § 4.71a Diagnostic Code 5201 (1999).
A VA examination was conducted in July 1993. The appellant
complained of intermittent left shoulder pain with diminished
strength in his shoulder. He indicated that he was right-
handed. He claimed that he could not lift or reach overhead
and had numbness at the scar site. Examination of his left
shoulder revealed a well-healed, 13 cm., C-shaped scar
anteriorly and a 2 cm. oval scar posteriorly. Abduction and
forward flexion were each limited to 90 degrees. Internal and
external rotation were each limited at 45 degrees. Strength
was diminished 25%. There was diminished sensation at the
scar sites and generalized shoulder tenderness. X-ray of the
left shoulder revealed that the bone, joint and soft tissue
structures were unremarkable. The impression was of a normal
left shoulder. The final diagnosis was of left shoulder
dislocation, postoperative.
A September 1998 VA treatment entry reported that the
appellant requested re-evaluation for disability of his left
shoulder. The impression was of chronic left shoulder pain
and history of shoulder surgery. The appellant was referred
for a physical therapy consult. An October 1998 entry
reported that he was seen as a referral for decreased range of
motion to the left shoulder after surgery and scarring in the
past. He stated that he had surgery to tighten the capsule in
1969 and that he was unable to reach all the way up with his
arm, and that it had been that way since the surgery. The
examiner observed range of motion of the left shoulder FE
(flexion/extension) 90 (160), IR (internal rotation) WNL
(within normal limits), ER (external rotation) 10 (25). The
appellant was instructed in a HEP (home exercise program) for
shoulder range of motion and RC (rotator cuff) strengthening.
A VA examination was conducted in January 1999. The appellant
again reported that his left shoulder had lost strength and
range of motion. The examiner observed that there was some
decrease in activity as he removed his over and under shirts.
He showed excellent musculature development about the left
shoulder, which compared equally with the opposite side as far
as build and definition. There was a C-shaped scar starting
laterally, curving in the coracoclavicular area along the
anterior border of the deltoid and descending at an angle.
The length of this surgical scar was 6 1/2 inches. The
appellant initially exhibited some tenderness to palpation
about the shoulder and was extremely protective of it. The
manual muscle resistance exhibited during examination did not
indicate any paralysis of the shoulder muscle girdle. The
appellant suppressed the action of his left upper extremity.
However, with encouragement, his elbows demonstrated an intact
range of motion of 0 to 145 degrees. In testing grip
strength, he did not demonstrate as much power in his left
hand as in the right. Range of motion of the shoulder caused
him to express pain. He could come from the vertical position
to a position of abduction of approximately 90 degrees, at
which point active range stopped and the examiner was unable
to increase it passively because of protection. External
rotation with the humerus vertical revealed a range of 80
degrees, which compared with the normal side, and internal
rotation of 90 degrees. The extremes of the ranges and the
commencement of the tests caused the appellant to exclaim with
pain. The examiner did not obtain local tenderness. Sensory
examination revealed no loss of sensation. Circumferential
measurement of the left forearm and right forearm revealed the
right to measure 12 1/4 inches and the left 12 inches. The
central biceps circumference revealed the left to measure 10 1/2
inches and the right 11 inches.
Multiple films of the left shoulder were obtained. There was
some slight narrowing of the joint space with some elevation
of the glenoidal rim. These irregularities were noted best on
the axillary view and were associated with some cystic changes
along the edge of the glenoid, both anteriorly and
posteriorly. The joint space was preserved. The impression
was of remote dislocation, chronic, recurrent, left shoulder;
remote repair, dislocation, left; and pain, left shoulder,
secondary to minimal degenerative joint disease. The examiner
commented that he was unable to establish the degree of
limitation due to pain. He expressed the opinion that the
changes found in the left shoulder joint were secondary to the
chronic dislocation following the injury in the service and
the necessary reparative surgery.
As previously discussed, the severity of a shoulder
disability is ascertained, for VA rating purposes, by
application of the criteria set forth in VA's Schedule for
Rating Disabilities, 38 C.F.R. Part 4 (1999) (Schedule).
Currently, the appellant is rated for impairment of the
clavicle or scapula under Diagnostic Code 5203, and is
receiving a 20 percent disability rating for nonunion with
loose movement, which is the maximum rating under this
diagnostic code. A rating greater than that in effect is
warranted for limitation of motion of the minor arm, with
motion limited to 25 degrees from the side (Diagnostic Code
5201). However, the appellant had abduction of his left
shoulder to 90 degrees on examination.
The objective medical evidence does not show limitation of
motion warranting a 30 percent disability evaluation under
38 C.F.R. § 4.71a Diagnostic Code 5201. However, during the
appellant's most recent VA examination, the examiner observed
decreased strength on the left and limitation of function due
to pain and guarding. Given these objective findings and the
appellant's complaints of pain on motion, which have been
objectively demonstrated on the most recent VA examination,
the Board finds, upon resolving all reasonable doubt in favor
of the appellant, that additional disability approximating 10
percent of average impairment of earning capacity is
warranted under 38 C.F.R. § 4.40 (1999) for functional loss
due to pain. 38 U.S.C.A. § 5107(b) (West 1991). As stated
above, the enumerated schedular criteria under Codes 5201 and
5203 do not by themselves support increased compensation as
the medical findings to not directly correspond to the higher
ratings available, but as the Board must consider all
elements of the claim under Part 4, it is found that
increased disability in the amount of the additional 10
percent rating under section 4.40 is shown. Accordingly, an
award of increased disability to 30 percent, but no higher,
for the left (minor) shoulder disorder is in order. DeLuca
v. Brown, 8 Vet. App. 202, 204-7 (1995).
Application of the extraschedular provision is not warranted
in this case. 38 C.F.R. § 3.321(b) (1999). There is no
objective evidence that this service-connected disability
presents such an exceptional or unusual disability picture,
with such factors as marked interference with employment or
frequent periods of hospitalization, as to render impractical
the application of the regular schedular standards. Hence,
referral by the RO to the Chief Benefits Director of VA's
Compensation and Pension Service, under the above-cited
regulation, was not required. See Bagwell v. Brown, 9 Vet.
App. 337 (1996).
ORDER
An increased rating for service-connected residuals of a left
shoulder dislocation, minor arm, to 30 percent, but no
higher, is granted.
CHRISTOPHER P. KISSEL
Acting Member, Board of Veterans' Appeals